Keewatin v. Minister of Natural Resources

Part 11. Post-Treaty Events 207[1069] Saywell's report, Ex. 137-2, contains the following at p. 56: "The existence of Section2(a) came as a surprise to Whitney when he first saw the bill."[1070] On March 5, 1912, Whitney wrote (Ex. 1, vol. 1, tab 780) to Cochrane, leader of theOntario Federal Conservative caucus in Ottawa, seeking information about references in theproposed bill to Indians, and asking Cochrane to explain any obligations Canada was askingOntario to assume. (Saywell, April 7, 2009.)[1071] Cochrane responded on March 8, 1912 to Whitney as follows (Ex. 1, tab 782): "Myunderstanding is that when Ontario wishes to take possession of the land they must settle withthe Indians in the same manner as I understand was done when the last treaty was made, andwhich Honorable Colonel Matheson handled."[1072] It appears from that letter that Cochrane alerted Whitney only to the issues relating tounceded title and Treaty 9. He did not mention Treaty 3 rights. (Saywell, April 7, 2009.)2011 ONSC 4801 (CanLII)[1073] Counsel for Canada submitted that Ontario would not have agreed to annexation knowingthat it could not "take up" lands in Keewatin without the authorization of Canada. (See thesection of these Reasons on Canada's Devolution Argument.)[1074] In Ex. 123, Vipond said that he was asked "On the basis of your knowledge of Canadianpolitical thought after Confederation, would Ontario have accepted the transfer of the KeewatinLands in 1912 if Ontario had thought that Ontario could not 'take up' or authorize the 'taking up'of tracts of land in the Keewatin Lands following the transfer of those lands to Ontario?" Hisanswer was "No." It is clear from the historical record that Ontario would never have acceptedconstraints on its ability to "take up" tracts of land in Keewatin because the ownership, controland disposition of land was utterly central to the province's post-Confederation developmentstrategy."[1075] Vipond gave evidence in chief that had there been qualifications or conditions in 1912that required or allowed the ongoing supervision of the federal government over such actions, it"would have been a big deal." Ontario would not have accepted any supervision. However, heagreed in cross-examination that so long as Canada was acting under a valid federal jurisdiction,even the provincial autonomists would not have viewed Canada's actions as unacceptablesupervision. His expertise did not permit him to comment on whether Ontario's title wasburdened by or qualified on account of Indian rights (February 23, 2010 at pages 44, 51 and127.)[1076] Obligations assumed by Ontario with respect to the Treaty 3 lands in Keewatin differedsignificantly from those eventually assumed by it in respect of Treaty 9 upon annexation. Asmentioned earlier, in 1910 the JCPC had in the Annuities Case denied Canada's claim forindemnity for payment of Treaty 3 annuities.[1077] Vipond opined on February 25, 2010 that Ontario benefited from the annexation. Itagreed to accept the transfer of the Keewatin Lands subject to conditions that Canada imposed,including conditions relating to Indian rights. Ontario accepted the lands subject to the condition